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President Obama Declares DOMA Unconstitutional, Justice Department Will No Longer Defend Law

In a major victory for the freedom to marry, today the White House announced that the so-called "Defense of Marriage Act" is unconstitutional discrimination against gay couples. That means that the Justice Department will live up to its name, and no longer defend DOMA in court.

"Freedom to Marry applauds the president and the attorney general for acknowledging that sexual orientation discrimination has no place in American life and must be presumed unconstitutional, recognizing that discriminatory laws like so-called DOMA must be looked at with skeptical eyes, not rubber stamped," said Evan Wolfson, President and Founder of Freedom to Marry.

Section 3 of DOMA says that the federal government can't recognize the marriages of gay couples, even if they've been legally married in states like Connecticut or Iowa. The legal challenges have involved gay couples who are in long-term, loving relationships and had been legally married – but are denied federal benefits for things like adding a spouse to health insurance.

President Obama has said repeatedly that he thinks DOMA should be repealed. But the Justice Department has still defended the law in court, saying that it was obligated to do so if there were "reasonable" arguments that it could use. But, those cases were in federal circuits where courts had already ruled that laws singling out people based on sexual orientation are constitutional if there is a "rational basis" for the laws. (Last summer in Massachusetts a federal judge ruled that DOMA violates the Constitution's equal protection clause anyway, saying that "irrational prejudice plainly never constitutes a legitimate government interest.").

Now DOMA has been challenged in the Second Circuit, however, which has no established standard for how laws concerning sexual orientation should be treated. That means the Justice Department had to make a conclusion on its own – and it rightly found that DOMA had to pass a much tougher test – "heightened scrutiny." And under that test, the law fails miserably.

Freedom to Marry has repeatedly urged the department to make this significant change in legal policy.

"The Administration today acknowledges that there is no legitimate reason for this discrimination and therefore it cannot be defended under the Constitution," Wolfson said. "This a momentous step forward toward Freedom to Marry's goal of ending federal marriage discrimination and fully protecting all loving and committed couples."

In a statement, Attorney General Eric Holder said that he recommended this finding to the president:

"Much of the legal landscape has changed in the 15 years since Congress passed DOMA. The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional. Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court."

So if the Obama administration won't defend the law, who will? That's unclear. Congress has the option to hire its own attorneys to do it, or – like with California's Proposition 8 – outside groups might try to get involved. But for now, one thing is certain – marriage opponents will have to dig even deeper to make the argument against the freedom to marry, and the fact remains: they have no case.